Citation Nr: 0400065
Decision Date: 01/05/04 Archive Date: 01/21/04
DOCKET NO. 01-05 224 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to a rating in excess of 30 percent for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Colorado Division of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Robinson, Counsel
INTRODUCTION
The veteran had active service from October 1964 to October
1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 2000 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Milwaukee,
Wisconsin. In that decision, the RO continued a 30 percent
evaluation for PTSD, in effect since 1994.
Jurisdiction of the veteran's file has subsequently been
transferred to the RO in Denver, Colorado.
In June 2003, the veteran gave testimony at a video-
conference hearing before the undersigned Veterans Law Judge.
A transcript of the hearing is of record.
The veteran submitted additional evidence directly to the
Board, after the appeal had been certified and forwarded to
Washington. He also submitted a waiver of initial RO review
of the new material, and hence the evidence will be
considered in this decision. 38 C.F.R. § 20.1304 (2003).
FINDING OF FACT
PTSD is manifested by some occupational and social impairment
with reduced reliability and productivity due to symptoms
including nightmares, flashbacks, sleep disturbance, anxiety,
hypervigilance, startled response, and irritability, raising
a reasonable doubt as to entitlement to a higher disability
rating.
CONCLUSION OF LAW
Giving the benefit of the doubt to the veteran, the criteria
for a 50 percent disability rating, but not higher, for PTSD
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary Matters - VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096, substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)).
VA has long recognized that the Department has a duty to
assist claimants in developing evidence pertinent to their
claims. See the former version of 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. § 3.103(a) (2002). The changes in law have
amended the requirements as to VA's development efforts in
this case, modifying and clarifying VA's duty to assist a
claimant in evidentiary development. See VCAA, supra. See
generally Holliday v. Principi, 14 Vet. App. 280 (2001),
overruled in part on other grounds, Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003).
In addition, VA has published regulations to implement many
of the provisions of the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (now codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003)). The
intended effect of these regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and scope of assistance VA will provide a claimant
who files a substantially complete application for VA
benefits. The regulations also provide guidelines regarding
VA's duties to notify claimants of necessary information or
evidence and to assist claimants in obtaining evidence. The
regulations, which in pertinent part are effective as of the
date of enactment of the VCAA, interpret and implement the
mandates of the statute, "and do not provide any rights
other than those provided by the VCAA." 66 Fed. Reg.
45,629. See also VAOPGCPREC 7-2003 (Nov. 19, 2003), as to
retroactivity of the VCAA regulations.
The VCAA contains a number of new provisions pertaining to
claims development procedures, including assistance to be
provided to claimants by the RO, and notification as to
evidentiary requirements. The Board has carefully reviewed
the appellant's claim file, to ascertain whether remand to
the RO is necessary in order to assure compliance with the
new legislation. It is noted that the development of medical
evidence appears to be complete. By virtue of the October
2000 Statement of the Case (SOC), the September 2002
Supplemental Statement of the Case (SSOC), the June 2003
correspondence, and associated correspondence issued since
the appellant filed his claim, the appellant has been given
notice of the information and/or medical evidence necessary
to substantiate his claim. He was advised that, if he
adequately identified relevant records with names, addresses,
and approximate dates of treatment, the RO would attempt to
obtain evidence on his behalf.
The RO also advised the appellant of the evidence obtained
and considered in deciding his claims in the SSOC issued in
September 2002. In addition, the appellant was advised of
the specific VCAA requirements in the September 2002 SSOC and
the June 2003 correspondence. It thus appears that all
obtainable evidence identified by the veteran relative to his
claim has been obtained and associated with the claims
folder, and that he has not identified any other pertinent
evidence, not already of record, which would need to be
obtained for an equitable disposition of this appeal. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting VA
must communicate with claimants as to the evidentiary
development requirements of the VCAA). See also Charles v.
Principi, 16 Vet. App. 370, 373-74 (2002) (requiring that the
Board identify documents in file providing notification which
complies with the VCAA).
The Board is aware that, in a decision promulgated in
September 2003, Paralyzed Veterans of America v. Secretary of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the Court
of Appeals for the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. § 3.159(b)(1) (2003)
as inconsistent with 38 U.S.C.A. § 5103(b)(1). The Court
found that the 30-day period provided in § 3.159(b)(1) to
respond to a VCAA duty to notify is misleading and
detrimental to claimants whose claims are prematurely denied
short of the statutory one-year period provided for response.
But see Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at
38 U.S.C.A. §§ 5102, 5103).
In the present case, the April 2001 correspondence informed
the appellant of the types of evidence which would be
necessary to substantiate his claim, and the RO obtained
certain medical records and opinions pertinent to the
appellant's claim. The additional evidence was duly
considered by the RO when it issued the September 2002 SSOC.
Moreover, the veteran submitted additional evidence to the
Board along with an appropriate waiver of initial review,
discussed below, which will be considered herein.
Inasmuch as the appellant has had more than ample time during
the pendency of this matter in which to submit supportive
information, evidence, and argument, and has in fact done so,
the holding of the Federal Circuit in its decision in PVA,
supra, has been fulfilled. In any event, the recently
enacted statute, Public Law No. 108-183, has essentially
reversed the holding in the PVA case.
Therefore, the Board finds that no useful purpose would be
served in remanding this matter for more development or
procedural steps. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
benefit flowing to the veteran. The Court has held that such
remands are to be avoided. See Winters v. West, 12 Vet. App.
203 (1999) (en banc), vacated on other grounds sub nom.
Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994). In fact, the Court has stated,
"The VCAA is a reason to remand many, many claims, but it is
not an excuse to remand all claims." Livesay v. Principi,
15 Vet. App. 165, 178 (2001) (en banc). See also Kuzma v.
Principi, 341 F.3d 1237, (Fed. Cir. 2003).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002).
II. Factual Background
The veteran served in the Republic of Vietnam as a machine
gunner with the U.S. Marine Corps. Among the awards and
decorations he received is the Purple Heart medal.
The veteran was accorded a VA PTSD examination in March 1997.
On clinical evaluation he was alert and oriented in all
spheres. He was neatly and casually dressed. He was
cooperative. His speech was normal. His affect was
congruent. He demonstrated normal psychomotor activity. His
thought processes were logical, coherent, and cohesive.
There was no evidence of paranoid ideation or delusions. His
insight and judgment seemed good. The diagnosis was PTSD. A
global assessment of functioning (GAF) score of 80 was
provided.
He underwent a VA mental disorders examination in March 2000.
He reported recurrent memories of Vietnam through intrusive
recollections, flashbacks, and nightmares. He was socially
isolated and withdrawn. On examination, he was alert and
oriented times three. He was neatly and casually dressed.
His mood was described as irritable, and his affect was
congruent. His speech was a normal rate, volume, and tone.
His thought process was logical, coherent, and goal directed.
His insight and judgment were good. The diagnosis was PTSD,
moderate. A GAF score of 75 was assigned.
VA treatment records dated from March 2000 to November 2001
reflect the veteran's participation in ongoing PTSD therapy
for his symptomatology, which include anxiety, mood changes,
flashbacks, startle reactions, social avoidance, short-term
memory loss, and sleep disturbance.
At a VA mental disorders examination in September 2001, the
veteran reported increased frequency in flashbacks and
nightmares. It was noted that some flashbacks produced
physical sensations. His experienced flashbacks on a weekly
basis. He suffered from recurrent intrusive memories and
sleep disturbance. On examination, he was cooperative. His
speech was speech was spontaneous and moderate in rate and
tone. There was no evidence of agitation or slowness. His
mood was "okay". His affect was constricted. His thought
processes were goal directed. Insight and judgment were
good. Cognition was grossly intact. The diagnosis was PTSD.
A GAF score of 65 was provided.
During his June 2003 hearing before the undersigned the
veteran testified that, because he was employed at the VA
hospital, he was uncomfortable expressing the severity of his
symptoms due to his daily contact with the staff. He said he
was also uncomfortable discussing his PTSD symptomatology to
the September 2001 examiner, due the examiner's age and
gender. He participated in weekly therapy at the Vet Center.
He believed that his work with the Military Order of the
Purple Heart was therapeutic. He continued to experience
nightmares, flashbacks, social isolation, and sleep
deprivation.
An October 2003 treatment summary from the Vet Center in
Denver was submitted directly to the Board following the
veteran's hearing before the Board. The report indicates
that the veteran was regularly participating in group and
individual psychotherapy, and worked hard at developing
better coping skills for PTSD. He was employed, and believed
that his job allowed him to channel his feelings of remorse
and guilt from his Vietnam experiences through helping other
veterans.
The veteran reported that, outside of work, he led a very
isolated life. His relationship with his significant other
was tenuous, and he was often emotionally detached from her.
He avoided non-veterans and kept socializing to a minimal.
He experienced intrusive thoughts on a daily basis, along
with arousal symptoms. His sleep patterns were frequently
disturbed. He experienced weekly nightmares, with feelings
of vulnerability and panic. He was very hypervigilant. It
was reported that he was motivated for treatment and rarely
missed his group sessions. The diagnosis was PTSD. A GAF
score of 45 was provided.
III. Pertinent Laws and Regulations
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (2003) and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed the veteran's service medical records and all other
evidence of record pertaining to the history of his service-
connected PTSD, and has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is inadequate for rating purposes.
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities, and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Not all
disabilities will show all the findings specified in the
rating criteria but coordination of the rating with
functional impairment is required. 38 C.F.R. § 4.21.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. The present level of disability
is of primary concern in a claim for an increased rating; the
more recent evidence is generally the most relevant in such a
claim, as it provides the most accurate picture of the
current severity of the disability. Francisco v. Brown, 7
Vet. App. 55 (1994).
The veteran's PTSD is rated under 38 C.F.R. § 4.130,
Diagnostic Code (DC) 9411. Under that code, a 30 percent
disability rating is in order when there is occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent rating is assigned under DC 9411 when there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped, speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. Id.
A 70 percent rating for PTSD is warranted when there is
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near- continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and the inability to establish and maintain
effective relationships. Id.
A 100 percent rating is warranted if there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; gross inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. Id.
The Global Assessment of Functioning is a scale reflecting
the psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. See Richard
v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic
and Statistical Manual of Mental Disorders (4th ed.1994). A
GAF score of 41 to 50 is defined as denoting serious symptoms
(e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifter) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job). A score of 51 to 60 is defined as indicating
moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers). A GAF score of
61 to 70 is indicative of some mild symptoms (e.g., depressed
mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, with some meaningful interpersonal
relationships. A score of 71 to 80 indicates that, if
symptoms are present at all, they are transient and
expectable reactions to psychosocial stressors with no more
than slight impairment in social and occupational
functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242-
244 (1995).
IV. Legal Analysis
The Board appreciates the veteran's testimony at his
videoconference hearing before the undersigned, as well as
the additional evidence which he submitted through his
representative after the hearing. Having carefully reviewed
the entire record, we believe that this an appropriate case
in which to invoke VA's doctrine of reasonable doubt. The
Board finds the evidence to be in relative equipoise as to
whether the veteran's PTSD warrants the assignment of a 50
percent evaluation under Diagnostic Code 9411. 38 U.S.C.A. §
5107(b); 38 C.F.R. §§ 3.102, 4.3.
Essentially, in this case, the evidence of record
substantiates the extent of mental impairment necessary to
warrant a higher evaluation than 30 percent. The veteran's
mental disorder affects his abilities to function both in his
occupation and socially, with such deficiencies as anxiety,
startle response, flashbacks, nightmares, hypervigilance,
social isolation, irritability, sleep deprivation, mood
swings, and impaired anger management. Thus, as supported by
the evidence of record, the veteran's symptoms of PTSD more
nearly approximate the level of impairment associated with a
50 percent evaluation. Therefore, in light of the evidence
as noted above, the Board concludes that the veteran's PTSD
is productive of impairment warranting the higher evaluation
of 50 percent under DC 9411.
As for the potential for a yet higher rating, we note the
medical evidence shows that the veteran has been assigned GAF
ranging scores from 45 to 75. The totality of the evidence
reflects moderate symptoms, warranting no more than a 50
percent rating under the applicable criteria. The evidence
does not demonstrate that the service-connected PTSD is by
itself productive of occupational and social impairment with
deficiencies in most areas or an inability to establish and
maintain effective relationships.
While the veteran may suffer from some level of social
impairment, in that he has been withdrawn and isolative, with
minimal socialization, the evidence does not show that he
necessarily is prevented from establishing and maintaining
such relationships. In this respect, the veteran is living
with his girlfriend and has reported that his relationship
with his children has improved. As for industrial
impairment, the veteran reported that he is currently
employed, and believes that his work is therapeutic.
The veteran's PTSD is not shown to be so disabling so as to
warrant an evaluation of 70 percent under Diagnostic Code
9411. Essentially, there are no clinical data to
substantiate evidence of occupational and social impairment,
with deficiencies in most areas, including work, school,
family relationships, judgment, thinking, or mood; or such
symptoms as: suicidal ideation, obsessional rituals which
interfere with routine activities, speech intermittently
illogical, obscure or relevant; near- continuous panic or
depression. In sum, the veteran's PTSD does not warrant an
evaluation greater than 50 percent under the pertinent
diagnostic code.
Finally, the Board finds that the evidence of record does not
present such "an exceptional or unusual disability picture
as to render impractical the application of the regular
rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2003).
In this regard, the Board finds that there has been no
contention and no showing by the veteran that his PTSD has
resulted in marked interference with his employment or
necessitated frequent periods of hospitalization. In the
absence of such factors, the Board finds that the criteria
for submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet.
App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
ORDER
An increased rating to 50 percent is granted for post-
traumatic stress disorder, subject to the laws and
regulations governing the payment of monetary awards.
_____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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